D’SOUZA MARK PHILLIP GARCIA v. HONG KONG SAR GOVERNMENT

HCAL 448/2023

[2023] HKCFI 947

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 448 OF 2023

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D E C I S I O N

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A.  Introduction

1.  The Applicant has been held in immigration detention under various sections of the Immigration Ordinance Cap 115 (“Ordinance”) since 2 June 2022. He was initially held pursuant to a power authorising detention for the purpose of enquiring whether a removal order or a deportation order should be made. A deportation order was eventually issued on 26 June 2022. Since then, he has been held under section 32(3) pending his deportation. To the date of this hearing, the period of detention has lasted 309 days.

2.  On 22 March 2023, the Applicant applied for writ of habeas corpus on the basis that his detention has continued for a period which has become unreasonable and thus unlawful by reference to the Hardial Singh principles.

3.  The Applicant identified the Hong Kong SAR Government as the Respondent. I shall take it as a reference to the Director of Immigration and the Permanent Secretary for Security, if necessary.

4.  I gave directions for the Respondent to file an initial response, and so as to bring the matter to today’s hearing. At the hearing, the Applicant appeared in person. The Respondent was represented by Mr Alvin Hor, Senior Government Counsel (Ag), who had also signed the initial response.

B.  Factual Background

B.1  Circumstances leading to the present detention

5.  The Applicant is a Filipino national born in 1998. He first arrived in Hong Kong in May 2014 on the strength of a dependant visa under the sponsorship of his father. The dependant visa was last extended to 25 January 2021, which means that he has been overstaying in Hong Kong ever since.

6.  During his stay in Hong Kong, he has been convicted of the following offences:

(1)  In September 2019, he was fined $1,000 for gambling in a gambling establishment.

(2)  In August 2020, he was sentenced to 2 weeks’ imprisonment and ordered to pay compensation of $292.60 for shoplifting.

(3)  In March 2022, he was sentenced to a total of 32 months’ imprisonment for burglary, 2 counts of obtaining property by deception, and handling stolen goods.

7.  He completed his last sentence on 2 June 2022. Upon being released from prison, he was transferred to the Immigration Department for handling. This is how the current immigration detention commenced.

B.2  The Applicant’s Non-refoulement Claim

8.  The Applicant lodged a non-refoulement claim (“NRC”) on 3 August 2022. As the chronology shows, the NRC was only lodged two months after he had been kept in immigration detention and more than 7 years after he had arrived in Hong Kong.

9.  The NRC was rejected by the Director in September 2022. The Applicant then appealed to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“Board”), which dismissed the appeal in November 2022. In his affirmation filed for this application, the Applicant complained that the Board failed to consider the merits of his case. In the next month, the Applicant sought leave to apply for judicial review of the Board’s decision, in HCAL 1438/2022.

10.  The result of that leave application is still pending, but the Court has been asked to accord priority to dealing with it because the Applicant is in detention.

B.3  Steps taken by the Director to effect removal

11.  At the beginning of the immigration detention, there was no major obstacle to deportation. As said, the NRC was only lodged two months after the current detention had commenced. The Applicant did have and still has a valid Filipino passport, which is currently kept by his father.

12.  I am informed that the Immigration Department has attempted on various occasions to persuade the father and the Applicant to surrender the passport for the purpose of facilitating the Applicant’s deportation, but to no avail.

13.  At the same time, the Immigration Department has also been liaising with the Consulate General of the Republic of the Philippines for the issuance of a replacement travel document. Indeed, the Immigration Department had sent a letter for this purpose to the Consulate General as early as on 20 May 2022, even before the current detention had begun. By letter dated 25 May 2022, the Consulate General had confirmed that a travel document would be issued to the Applicant for his eventual repatriation to the Philippines.

14.  However, it appears that the process has not been smooth because the Applicant has refused to complete the formalities including attending interview with the Consulate General. Nevertheless, progress has been made recently. By an email dated 30 March 2023, the Consulate General said that it could issue a replacement travel document for the Applicant upon the provision of his passport photo and the travel itinerary even without an in-person interview attended by the Applicant. The travel document would be made available the same day as sought with the necessary documents. I am told that the required passport photo has already been secured.

15.  The other obstacle, namely the NRC with its related judicial review proceedings, was only created after the current detention commenced. As already said above, the matter is now at the stage of pending the Court’s decision on the judicial review leave application. By letter dated 21 February 2023, the DoJ has informed the Court that the Applicant is currently held in immigration detention and has requested priority to be accorded to this case. I note that the Form 86 provided to me apparently does identify any grounds on which relief is sought – though I have commented above that the Applicant has said that his complaint is simply that the Board did not consider the merits of his case. I acknowledge that I have not seen the affirmation supporting the Form 86 (which may or may not provide more information).

B.4  Review of Detention

16.  The Applicant’s detention was last reviewed on 10 March 2023, and continued detention was recommended. In general, the grounds or reasons relied upon for continued detention were as follows:

(1)  The Applicant’s removal is going to be possible within a reasonable time. It was noted that the DoJ has already informed the Court of his detention and invited the Court to accord a higher priority to his leave application.

(2)  The Applicant poses, or is likely to pose, a threat or security risk to the community, in view of his criminal record. It is said that the offences he committed were serious as reflected in the length of sentence imposed.

(3)  He may abscond and/or re-offend. Again, reliance is placed upon his criminal record.

(4)  It was noted that despite the fact that his father and stepmother are Hong Kong permanent residents, such local connection does not outweigh other factors which point in support of continued detention.

(5)  It was also noted that despite repeated counselling throughout July 2022 to January 2023, the Applicant had refused to cooperate in completing the re-entry formalities. This has hindered the issuance of a replacement travel document to facilitate his eventual repatriation.

(6)  There are no other circumstances in favour of his release.

C.  Applicable Principles

17.  In its Reasons for Judgment dated 29 July 2022 in Harjang Singh v Secretary for Security [2022] HKCA 781, the Court of Appeal addressed the principles to be applied in a case such as the present. The case can be read for its full reasoning and explication of the correct approach, but at §164 the Court offered a summary of the principles which should be adopted and which can be applied as appropriate to the particular circumstances of this case.

D.  Applicant’s Submissions

18.  In the supporting affirmation for his habeas corpus application, the Applicant mainly set out the procedural history of his NRC and the related judicial review proceedings in HCAL 1438/2022. The only thing he said which is more directly related to this habeas corpus application is as follows:

7.  I was transferred to Tai Tam Gap correctional institution and kept under administrative detention until now. I do not know why the Immigration Department kept me under administrative detention, and I do not know when I will be released. I have been in immigration custody since 2 June 2022, which is unreasonable in all circumstances.

8.  I request the courts to assess my detention taking into account the new guidelines recently issued by the Court of Appeal in Harjang Singh v Secretary for Security [2002] HKCA 781; Ditta Allah v Director of Immigration [2022] HKCA 779.

19.  This does not give any real explanation as to why the Applicant says his detention has become unlawful, but I keep in mind that it is for the Director to show to the Court that continued detention remains lawful in all the circumstances. That is the assessment which the Applicant has invited.

20.  But, in any event, at the hearing, the Applicant handed up written additional grounds directed at the Hardial Singh principles, which grounds might be summarized as follows:

(1)  Removal cannot be affected within a reasonable time, because of the ongoing judicial review proceedings, and no request has been initiated to the Consul General of the Philippines to expedite issue of travel documents.

(2)  There is no sufficient reason to believe that the judicial review proceedings will be finalised within a reasonable time, and no date for effecting removal can be provided.

(3)  He is not a threat or risk to community, and releasing him would not create such a threat or risk.

(4)  No distinction has been attempted between being a threat or security risk, and risk must be real not imagined.

(5)  Though he accepts that all crime is serious, his offences are less serious than offences in other cases. There is no offence of violence.

(6)  He cannot change the past, but is really remorseful.

(7)  The risk of absconding is very low, as he would live with his Hong Kong permanent resident father, who would also be his guarantor and support all his needs.

(8)  That would also make the risk of reoffending lower, as he does not wish to make another mistake and waste time in prison which he could spend with his father.

(9)  The Director has failed properly to balance all the circumstances, and had that been done it would be seen that the detention has become unreasonable

21.  The Applicant further orally submitted (in my summary of what he said) that:

(1)  Though it is correct that the request to expedite the judicial review has been made, he wishes to be released whilst waiting for deportation.

(2)  Though no medical evidence has been provided in this case as to his father's medical condition, a certificate was provided at the mitigation on his last conviction showing the father's knee condition.

(3)  He is genuinely remorseful about his criminal record, and promises not to offend again.

(4)  If he were to re-offend, he would agree to be removed at once without even necessarily going to court.

(5)  The reason why he does not wish to go home to the Philippines is because he is scared as to what might happen to him there, not because he wishes to stay in Hong Kong to commit further crimes.

(6)  He has been held in a correctional institution, and has learned to correct his previous mistake. It was not a University of crime, teaching him to commit more crimes.

(7)  For most of his period in Hong Kong, he was outside and just working, until he made a mistake with drugs and committed crime.

(8)  But now he has stopped smoking, and he has the strong will to continue to remain out of trouble.

(9)  He seeks one last chance.

22.  The Applicant’s father was in Court, and handed up a letter in which, amongst other points, he pleaded for his son to stay as a resident of Hong Kong. However, that is not the matter at issue in the current application. The Applicant is subject to an extant deportation order, and the relevant question to be determined on this habeas corpus application is not whether he can remain in Hong Kong. The question to be determined is whether the Applicant can continue to be lawfully detained until his removal from Hong Kong, or whether he cannot continue to be lawfully detained so should be released on recognizance pending his removal from Hong Kong.

23.  The father did also acknowledge that he failed to provide enough attention to the Applicant in his younger teenage life, and wishes now to make amends and do it right. He believes that the Applicant, who is still very young, has learned his lesson and will be a law-abiding citizen; that the Applicant would be alone in the Philippines without many relatives; and that he hopes the Applicant could stay with him. The father also expressed being very sorry that he did not surrender the Applicant's passport, saying that he was afraid that at any time the Applicant would be deported when he (the father) does not want the Applicant to be away from him.

24.  I will bear these points in mind in my overall assessment below, and make reference to them as appropriate.

E.  Whether Detention has become unlawful

25.  There was and there remains clear prima facie lawful authority for the detention of the Applicant. The question then arises whether the overall circumstances have rendered continued detention unreasonable, and hence unlawful.

26.  The starting point is that the Applicant has been detained for the period of 309 days, or about 10 months. This is not a short period, and it is against this period that the other factors are to be weighed and balanced.

27.  I can address and apply the Hardial Singh principles broadly in turn, as follows.

28.  I accept that the Director/Secretary intend to remove or deport the Applicant and have been only using the power to detain for that purpose. That the detention has been for a substantial period does not mean that the Director was detaining the applicant for some other purpose. HS1 is satisfied.

29.  I am also satisfied that the Director has acted with reasonable diligence in effecting removal. The Director has diligently pursued the Applicant’s re-entry, from even before the current period of detention began, as evident by the active liaison with the Consulate General and the initiative to invite the Court to accord priority to the HCAL 1438/2022. HS4 is satisfied.

30.  Whilst it is unfortunate that the Director has not been able to repatriate the Applicant after 10 months’ detention, the Applicant is to a certain extent the maker of his own misfortune. Indeed, it is not difficult to form the view that the obstacles to removal – and hence to release from detention – were simply thrown up by the Applicant in an attempt to block his deportation under the valid and extant deportation order. The passport issue need not have been an obstacle at all, had he been willing to surrender his valid passport. The NRC was only lodged two months after the current detention had commenced.

31.  As of now, in light of the recent communication with the Consulate General, the passport issue is no longer an obstacle. What remains in the way of repatriation is HCAL 1438/2022 and it is reasonable to expect that the Court will accord priority to this case and a decision will be made fairly soon.

32.  I also agree with the Secretary/Director’s assessment that the Applicant may re-offend or abscond if released on recognizance, given his past criminal record and his persistent unwillingness to return. I accept that the past offences may not be of the most serious kind sometimes seen, though the last convictions led to a substantial period of 32 months’ imprisonment reflecting the seriousness. The Applicant has demonstrated real and persistent unwillingness to be returned, and has obstructed that process. Even if he is doing so from a genuine fear for his safety if he were to be returned and, as he says, not for a desire to commit crime in Hong Kong (which is not the question for me today), the risk that he would not turn up for a repatriation flight is not low. If he were to be released then abscond, that would defeat the purpose of the detention and the deportation order.

33.  I do not think the local family connections or any other matters change the balance in this case at this time. Indeed, the Applicant’s father has been either complicit in the passport issue, or has at a minimum failed to persuade his son to surrender the passport (though I note the father’s apology in this respect).

34.  I accept that 10 months is a substantial period. I also expressly take into account that the weight to be given to the various factors will or may vary as the period of detention lengthens. But weighing that period against all the factors and circumstances of this case, I am satisfied that – at present – the detention has remained and will remain or continue for a period which is lawful. HS2 and HS3 are satisfied.

F.  Result

35.  For these reasons, I dismiss the Applicant’s application for a writ of habeas corpus.

36.  I make no order as to costs.